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Severance of Khmer Rouge court's Case 002 deemed invalid

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A view of the trial chamber during a Case 002 hearing at the Extraordinary Chambers in the Courts of Cambodia on the outskirts of Phnom Penh in 2011. Photograph: Eccc/Pool

In a landmark decision, the Khmer Rouge tribunal’s highest body has ruled the court’s move to divide Case 002 into a series of mini-trials a violation of parties’ rights and invalidated an order that has governed the case against the regime’s top living leaders since the very start.

A 27-page Supreme Court Chamber decision, dated Friday and released to the public last night, blasts the Trial Chamber, saying the body operated far beyond its discretion and erred in its interpretation of the law when it chose to sever the indictment.

“The Supreme Court Chamber is also alarmed by the paucity of reasoning in the Severance Order,” the judges note at one point.  

The severance order has been widely lambasted by the prosecution, the defence, civil parties and legal experts since its issuance in September 2011. While the defendants’ old age and ill health make it almost certain that Case 002/01 will be the only mini-trial ever heard, the scope, argue many, is implausibly narrow.

The current case deals solely with forced evacuations, and attempts by the prosecution to have it widened have largely failed. A year after prosecutors first requested nine crime sites be added as a way to ensure that the historical record would better reflect the gravity of the Khmer Rouge’s crimes, the Trial Chamber agreed to add only one.

In their ruling, the Supreme Court judges pounce on those more widely circulated arguments against severance, but they also take the lower court judges to task for shutting down the voices of those most relevant.

“The Supreme Court Chamber notes with concern that the Severance Order was issued without having sought the view of the parties,” writes the panel of seven judges, before saying the lower body operated with “unfettered” discretion, violating the court’s internal rules.

The explanations put forward to justify the rulings, meanwhile, do “not demonstrate how the severance advances the interest of justice, nor does it satisfy the right to receive a reasoned decision.”

Though the parameters of Case 002/01 are widely known, no information has been released on theoretical subsequent cases. That lack of planning, write the judges, “has effectively ‘buried’ the remaining charges in the Indictment.”

Signed by Supreme Court Chamber president Judge Kong Srim, the decision concludes with the severance order being declared invalid.

What impact that decision will have on the ongoing proceedings, however, is far from clear. Though the judges provide no explicit recommendation, they give leeway for the case to continue as is, saying that a severance can be undertaken if “all parties’ respective interests are balanced against all relevant factors.”

In an unusual aside, they also advise that the court consider establishing a second panel of Trial Chamber judges that could hold hearings while the current chamber works on drafting the judgment.

“Given the advanced age and declining health of the Co-Accused, as well as the gravity of the alleged crimes remaining in the Indictment, it is imperative that the ECCC utilize every available day to ensure a final determination of the remaining charges as expeditiously as possible,” the judges warn.

The Trial Chamber is expected to move on the order in the coming days, court spokesman Lars Olsen said yesterday.

“They will very soon issue a directive to the party explaining how they intend to follow up this message,” he said, adding that he believed the “situation can be easily remedied.”

But after more than a year of hearings in a trial whose terms have remained frustratingly ambiguous, lawyers yesterday expressed trepidation over the impact of the ruling.

“I do not think merely shoring up its reasoning is sufficient,” Michael Karnavas, defence co-lawyer for Ieng Sary, wrote in an email.

“The way I read the decision, this entire notion of severance has to be revisited. I certainly would welcome some frank and explicit reasoning. It is clear now that the SCC even believes that there will be no other trial on this case, recognizing the age of the accused.”

International civil party lawyer Lyma Nguyen said she suspected that “in practice, things won’t be that different” following the re-evaluation but noted the consequences for civil parties – who have been badly hampered by the severance order – could prove significant.

“The severance of the trial has had massive implications for which civil parties will ultimately have recourse for judicial reparations,” she said. “When we have a trial that focuses only on forced transfer, that means at the end of the trial... the judicial reparations would not be able to provide for victims whose case would fall under the rest of the severance.

“The effect of the Supreme Court decision is that all of these issues are now back in, so I think all parties need some certainty and some clarity on the approach the Trial Chamber is going to take.”

The prosecution, on whose appeal the SCC ruled, declined to comment, noting that the process was still ongoing.

“I think it will be decided quite quickly, however,” said co-prosecutor Andrew Cayley.

The decision leaves the Trial Chamber with just a handful of options. After consulting with parties, judges could decide to keep the indictment severed but would have to provide ample reasoning, along with an explanation of the scope of each subsequent mini-trial. Alternatively, the Trial Chamber could order that a single, smaller trial containing “reasonable representativeness of the Indictment” is heard.

Lawyers and legal experts interviewed agreed the latter would be the most likely conclusion for a court that has been increasingly slowed by the health woes of its aged defendants.

“The idea that there’s going to be any future trials is impossible, it’s so remote. Given the budgetary concerns and the health concerns, they will have to focus on improving representativeness,” said Anne Heindel, a legal adviser at the Documentation Center of Cambodia, adding that by shoring up the legal reasoning, the court can ensure its verdicts are viewed as valid.

“For building rule of law in Cambodia, setting important legal precedent, this is huge. This is also very important for the legitimacy of the process and how it is seen,” she said. “Obviously, survivors want to see a guilty verdict, but the process is key. If you look at the 1979 trial of Pol Pot and Ieng Sary in absentia, it seems totally illegitimate. The verdict alone hasn’t had any lasting effect.”

To contact the reporter on this story: Abby Seiff at abby.seiff@phnompenhpost.com

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